AG determines BOS violated Open Meeting Laws again; orders selectmen to attend training

by beth on November 5, 2019

Last month, I shared that the Town would be hosting public training sessions on ethics and open meeting laws by the state government. (The first in that series is tomorrow night by the State Ethics Commission.)

At the time, the Town Clerk explained the reason behind a November 20th session to be held by the Attorney General’s office on Open Meeting Law:

The Town of Southborough has been the subject of several Open Meeting Law complaints in recent years. This training will help the public, elected officials, and volunteers appointed to boards and committees understand their rights and responsibilities.

More recently, a letter from the Attorney General’s office makes clear that attendance at that meeting will now be mandatory for Southborough selectmen. The order is a result of the AG’s office finding that the board has violated OML in regards to timely review and approval of meeting minutes.

The AG declined to find the violations intentional. But it did find that the board’s violations were longstanding and widespread. The letter (again) cautioned that:

similar future violations may be considered evidence of an intent to violate the law.

The letter also noted concern that Town Counsel Aldo Cipriano appeared to mischaracterize the seriousness of the violations:

comments by Town Counsel which characterize certain Open Meeting Law complaints as “frivolous” and minimize the importance of curing certain Open Meeting Law violations as “ministerial” are likely to encourage the Board to disregard the seriousness of its obligations under the Law. We have, on occasion, described certain Open Meeting Law violations as “de minimis, ”. . .

By contrast, the issues raised here are significant and the violations we find go to the heart of the Open Meeting Law.

The seven page letter breaks down findings under three subheads.

I. The Board violated the Open Meeting Law by failing to approve both open and executive session minutes in a timely manner.

The complaint revolved around a slew of minutes that were late to be approved and released. Most were finally approved for release at the January 2nd BOS Meeting. (Though, as I posted at the time, many of the Executive Session minutes were highly redacted.) These included many dating back as far as 2013-17.

Prior to that release an AG letter in November 2018 found that the board had failed to release January 2018 minutes in a timely manner. That was the response to a complaint by Attorney Ginny Kremer.*

After that finding, Kremer filed additional complaints with selectmen in November and December, plus two more in mid and late January. The newest finding from the AG’s office, dated October 25th, states that it is in response to those four complaints which were subsequently filed with the AG.

II. The Board violated the Open Meeting Law by failing to review its executive session minutes at reasonable intervals.

Assistant AG Sarah Chase explained:

Executive session minutes may be withheld from disclosure to the public “as long as publication may defeat the lawful purposes of the executive session, but no longer.”

That means the board is required to regularly review the minutes to determine if the exemption still applies. The AG’s office found that the board wasn’t meeting the requirement:

Although quarterly or six-month review is acceptable for purpose of the Open Meeting Law, waiting a year or more between reviews is not. We also find that the Board only reviewed a select number of its outstanding minutes at each of these meetings, not all of them, as it should have done. The Board was required to review all outstanding executive session minutes at reasonable intervals to determine whether the purpose for the executive session continued, and if it determined that the minutes must continue to be withheld, then it should have reviewed those minutes again at reasonable intervals.

III. The Board has engaged in a longstanding and widespread pattern of Open Meeting Law violations and therefore all members will be required to attend in-person Open Meeting Law training.

Chase wrote:

We acknowledge that the Board has taken significant steps to approve minutes in a timely manner and review all outstanding executive session minutes since the issuance of OML 2018-147 at the end of last year. Town Counsel, in conjunction with the Town Clerk’s office, has also conducted a workshop for approximately thirty elected and/or appointed town officials, including four of the five Selectmen, on September 5, 2019.

However, the Board has a history of Open Meeting Law violations spanning a variety of different requirements of the law, and persisting despite changes to the Board’s membership.

The training session is one of three public sessions this month being held at Cordaville Hall this month:

  • State Ethics Commission – Wednesday November 6, 6:00 – 8:00 pm
  • Office of Campaign and Political Finance – Wednesday November 13, 6:00 – 8:00 pm
  • Attorney General – Open Meeting Law – Wednesday November 20, 5:30 – 7:30 pm

For more details, see this dedicated post.

The AG ruling isn’t on the agenda for tonight’s Board of Selectmen meeting, but it may be referenced under another item (e.g., The Chair’s or Town Administrator’s report.) Plus, I wouldn’t be shocked if it’s raised by a resident during Public Comment.

Back in July 2018, I summed up past OML complaints and violations against the Town. Since then, more determinations have been posted by the AG. Since then, six more determination letters have been posted.

In addition to the findings against selectmen noted above, three found in selectmen’s favor, and one found a violation of the Zoning Board of Appeals. (The findings below are listed by the date findings were determined in rather than date of filings):

  • August 1, 2018 – Attny Donald O’Neil claimed: ZBA failed to maintain and approve 2014 minutes in a timely manner; AG ruling: Violation
  • August 5, 2019 – Attorney representing Louise Barron claimed: BOS violated OML by making a portion of the Board’s December 4 minutes inaccessible and that December 4 open session meeting minutes are inaccurate; AG ruling: No violation
  • September 9, 2019 – David Parry claimed: BOS deliberated outside of a publicly posted meeting; AG ruling: No violation
  • September 23, 2019 – David Parry claimed: BOS discussed item without properly posting advance notice on agenda or documenting in minutes; AG ruling: No violation

*The AG’s determination letter doesn’t clarify who Kremer was representing.

Updated (11/19/19 10:45 am): I just realized that I never included a link to the full October 25th letter from the AG’s office to the Town. Here it is.

{ 19 comments… read them below or add one }

1 Tom November 7, 2019 at 9:16 AM

It looks like this has been going on for a long time. While the years 2013 and years after are referenced above, this could have been going on longer. The right first steps were taken by then Chairman Lisa Braccio, who requested an audit. The article above states that “The violations we find go to the heart of the Open Meeting Law.” The real question is why and how were those minutes untimely if all staff and volunteers receive a copy of Open Meeting Law? Thanks to Ms.Braccio for taking the right steps in protecting the public and getting the town on the right track.

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2 Mary November 7, 2019 at 12:32 PM

Where is the accountability for town counsel in this scenario? He needs to be re-evaluated for a myriad of issues including OML violations. There was a town meeting that stated he would be evaluated and it never happened. It’s time we look to get a new Town Counsel on staff.

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3 Ben November 7, 2019 at 2:22 PM

I’m surprised at the board of Selectmen not keeping up with minutes since majority of board members are attorney’s. I wonder if they run their business as such ?
Same goes for town counsel, If the Attorney General says you have to abide by the law why would you minimize the comment ? Time for a change.

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4 HonestAbespeaks@gmail.com November 7, 2019 at 8:14 PM

These OML violations are a very big deal. It represents all that is dishonest, ugly, and deceitful in local government here. It speaks loudly to our very foundation in Southborough, that for too long has been run under a cloud of secrecy, mendacity, and boards run for their own purposes, not that of the people. That is about to change.

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5 Tom November 8, 2019 at 11:14 AM

Honest Abe, agree that this is a very big deal. Wondering if this goes beyond the initial audit year of 2013. Check out the AGO decision letter (link below) for the dates of the minutes called out as untimely by the Attorney General’s office for the names of those responsible for the lack of release to the public, i.e. untimely.

All residents should check out the contents of those minutes. Here are the links:

https://www.southboroughtown.com/node/146/minutes

For the AGO decision, click on the following link:
https://massago.onbaseonline.com/Massago/1700PublicAccess2/ControlTemplateAGO.aspx?CustomQueryID=104&selSearchYear=&startDate=&endDate=&txtSearch=&OBKey__135_1=&OBKey__156_1=&OBKey__136_1=&OBKey__138_1=SOUTHBOROUGH&OBKey__139_1=&OBKey__137_1=&OBKey__140_1=&OBKey__142_1=&OBKey__148_1=&OBKey__141_1=&OBKey__146_1=&OBKey__149_1=&OBKey__147_1=&OBKey__145_1=&OBtn_Yes=Search

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6 Al Hamilton November 8, 2019 at 11:36 AM

Actually, we should take a close look at the role of the Town Administators in these affairs. The timely scheduling of reviews of executive session minutes is clearly, in my mind, an administrative function. While the BOS bears ultimate responsibility, they hire administrators to assist them and keeping track of important items to include on the agenda. Putting the matter before the BOS for resolution is clearly the responsibility of the TA.

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7 Tom November 8, 2019 at 2:03 PM

While it may be true that the Town Administrator assists, the law reads that it is the legal responsibility of the Board or its Chair or its designee (legally agreed upon and voted in designee, not made up after-the-fact). One of those three legal entities is legally responsible. (For most Boards, public or private, it is the legal responsibility of the Chair. Lawyers and other professionals, i.e. anyone who has served on a Board, particularly private board, knows this.) See page 5 of the Attorney General’s decision letter, which cites MGL C.30A, S.22(g)(1):

(g)(1) The public body, or its chair or designee, shall, at reasonable intervals, review the minutes of executive sessions to determine if the provisions of this subsection warrant continued non-disclosure. Such determination shall be announced at the body’s next meeting and such announcement shall be included in the minutes of that meeting.

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8 Tom November 8, 2019 at 2:30 PM

All residents should read the AGO decision. The decision recites Open Meeting Law and related regs. It reads (p.4): “the Attorney General’s Open Meeting Law regulations provide that “timely Manner” means “within the next 3 public meetings or within 30 days . . .Whenever possible, we recommend that minutes of a meeting be approved at the next meeting. See OML 2019-39; OML 2014-15; OML 2012-91.”
The next meeting, not years, or never, or as the result of a complaint.

All residents should read the minutes called out in the decision. Some of these minutes are heavily redacted. Regardless, minutes are the only way to maintain clear, honest, transparent government, which is the point of Open Meeting Law. There are scores of violations, with most in recent years. Many on the board are lawyers. Town counsel should be held accountable as well. He actually minimalized the matter and was admonished on p.6. Time for new town counsel.

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9 Alfred Hamilton November 9, 2019 at 3:14 PM

Tom

I agree with you that the BOS is responsible they are the ones we elected and are the only ones the electorate can hold responsible. The BOS in turn hires the Town Administrator to administer their policies and manage things day to day.

The TA serves as an important gatekeeper for the BOS meeting agenda and it is fair to ask why these items were not put before the BOS for resolution in an timely fashion and putting those important items before the BOS is certainly part of the job of the TA.

So, yes, the BOS is responsible but we should remember that they each have “day jobs” and effectively serve as volunteers (yes I know they get a very modest stipend). They must rely on the support of their professional staff and they should be asking some hard questions of the TA and Town Counsel about how these important items were “misinterpreted” or slipped through the cracks”. If they fail to do so, that should be an issue for the ballot box.

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10 Tom November 12, 2019 at 10:50 AM

Al, disagree totally. All of these “volunteers” and “employees” get a copy of Open Meeting Law.

Many of the BOS members are lawyers. They can read Open Meeting Law for themselves.

Also, town counsel “minimalized” the matter and was admonished by the Attorney General’s Office in the letter, calling the matter “serious.”

All are supposed to be ensuring good, clean, transparent government by complying with Open Meeting Law. This violation letter is not even on the BOS agenda and the BOS will not even acknowledge the violation letter publicly apparently. The irony is that it is about transparency and good function.

This is not a matter of a few issues. The first thing any Board does is approve the minutes from the last meeting. Are you suggesting they forgot? Or something “slipped through the cracks?” These are scores of violations called “egregious” by the Attorney General’s Office. Every person in this Town should read the AGO letter and the minutes called out in that letter, more importantly.

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11 Al Hamilton November 12, 2019 at 11:40 AM

Tom

I am not trying to minimize the seriousness of the offenses or to let the BOS off they hook. They own the serious failures. I am merely trying to suggest that there are others who are paid professional staff who also bear responsibility and should be held accountable. Shouldn’t Town Counsel and the TA be aware of outstanding executive session minutes and be alerting the BOS that they need to stay on top of them? I think so.

Next spring, we will have the opportunity to hold 2 members of the BOS accountable for their actions. You clearly feel strongly about this issue so I suggest that you find a candidate to oppose the incumbents if you think they played a part in these transgressions.

In the mean time if the BOS does not hold the professional staff accountable then that is a further indication that they do not treat this matter seriously.

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12 Mary November 13, 2019 at 10:34 AM

Interesting Article in the Worcester Telegram

https://www.telegram.com/news/20191112/southboro-selectmen-found-in-violation-of-open-meeting-law
Assistant Attorney General Sarah Chase wrote in a letter to Aldo Cipriano, Soutboro town counsel, on Oct. 25: “We are gravely concerned that the Board neglected its obligations to timely approve and then review and release executive session minutes adequately for almost five years, especially considering the controversial topics which came before the Board during that time.”

Chase continued: “In addition, the breadth and depth of years of failures related to meeting minutes found in this determination are egregious.”

She found the violations “longstanding and widespread.”

Where is the transparency that both Sam and Marty ran on? How is Counsel not stepping down? I understand that much of this happened with Dan Kolenda and Brian Shea on the BOS and Dan probably has a lot he doesn’t want to share so of course they want to sweep it under the rug.

Enough is enough the citizens can’t stand for this nonsense anymore.

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13 southsider November 13, 2019 at 12:02 PM

mary,
It’s only November 13th! You seem to be complaining about the BOS’s lack of response to a letter dated October 25.
Let’s give them a meeting or two to react; if they deem it necessary. There are a lot of ways that this could play out… some less draconian than others… and some may not become visible to us until Performance Evaluations are completed ( whenever those are scheduled).
Not sure you needed to slam Mr. Kolenda as you were making your point about town counsel. This guy gives a lot of time to the town and has no allegiance to either local developers or local businesses, a rarity around here. I suggest he tries his best. If you don’t like how he does it, take out nominating papers and run against him.

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14 Mary November 13, 2019 at 2:01 PM

Southsider-I’m sorry I disagree on so many levels. Mr. Kolenda during this period was Chair and is an attorney and completely understands what the OML is and how they withheld information and redacted and concealed information from the public. He has also absolutely tipped his hand in favor of developers on numerous occasions.

The discussion with BOS has already been minimized by Town Counsel and Mr. Shea considers it finished business (of course he does). I’d like to see it on the agenda, I won’t hold my breath, but hopefully Sam, Marty and Lisa push to make it happen. We deserve to know what was withheld and why and people need to be held accountable. If the AG said your company or whoever you work for did egregious things I’m sure there would be someone internally held accountable. The constant I see here is Town Counsel. There should be a term limit on this position at least for major review and he’s been here for far too long to pretend he isn’t in the know on this one. This is the tip of the iceberg with him.

Assistant Attorney General Sarah Chase wrote in a letter to Aldo Cipriano, Soutboro town counsel, on Oct. 25: “We are gravely concerned that the Board neglected its obligations to timely approve and then review and release executive session minutes adequately for almost five years, especially considering the controversial topics which came before the Board during that time.”

Chase continued: “In addition, the breadth and depth of years of failures related to meeting minutes found in this determination are egregious.”

She found the violations “longstanding and widespread.”

I think this sums up what many of us have been dealing with for a very long time.

“Democracy dies in darkness, and that’s what’s happening in Southboro right now.”

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15 Tom November 18, 2019 at 11:41 AM

Southsider and Mary, It is now November 18th. The BOS agenda for tomorrow night, November 19th finally has a mention of the AGO decision letter dated Oct. 25th under “Chairman’s Report.” Let’s see how this matter is handled.

The residents will see if there is an actual discussion or a bare mention, and whether or not there is responsibility, accountability, and transparency, or if BOS forgot 68 times (plus) to release the minutes.

It’s not about releasing the minutes so much as what is contained in the minutes.

Does anyone know if the Wed, November 20th mandatory training session for the Board of Selectmen includes an invitation to those whose tenures predated this mandatory order by the AGO? Also, will the training session be open to the public? Will it be videotaped by Southborough Access Media and posted for further educational purposes? This should not be a lost resource. This is a valuable resource for educational purposes.

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16 Tom November 18, 2019 at 11:49 AM

BTW, why should any of this be waited upon for a “performance review.” These important matters should be addressed now. And taken seriously. This falls under “Lack of Performance” obviously, not performance. Town counsel has already tried to minimalize the matter and was admonished by the AGO for it. What else do you need to know? Taxpayer dollars spent on bad legal advice? Just Say No. Same for the already ridiculously overpaid Town Administrator. Where is the accountability? There needs to be meaningful measures taken to protect the town against bad advice and lack of performance. Where are normal policies? Normal policies please.

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17 Tom November 14, 2019 at 7:57 AM

Southsider, clearly you have not read the AGO’s letter thoroughly nor the minutes called out by the AGO. Accountability for breaking state law, Open Meeting Law, is not “slamming.” The very first set of minutes from 2013 (the start date of the audit by Ms. Braccio; there may well be violations going back longer) are heavily redacted and contain the names of BOS members Kolenda and Rooney. Rooney is now on Advisory. Both are attorneys. Both got a copy of Open Meeting Law.

The bulk of the violations of Open Meeting Law are in recent years under Kolenda. At the end of last year, he lost the support of many when he cut the audio (video still rolling) and threateningly berated a resident (a grandmother) for inquiring about overspending, budget imbalance, taxes, and breaking state law, the very matter the Board is now found by the AGO in violation. On this blog, a mother commented that in a different setting, he would have been arrested.

This town is fed up with bad behavior, “volunteers” with direct financial links to developers, good ole boys, no accountability, little transparency, and the conflicts of interest. Time for change.

“BE BEST” below sums it up best:

http://www.mysouthborough.com/2018/12/04/open-discussion-thread-ask-questions-share-opinions-124-2-2-3/
Be Best December 5, 2018 at 3:59 PM
Physically and verbally threatening a member of the public as Dan Kolenda did at last nights Selectman’s meeting is not acceptable. While the content presented by an individual during public comment may have been difficult and the presentation direct, they were done within the boards comment policy, and provided no justification for Mr Kolenda’s behavior. His physically threatening actions, saying he was going to call law enforcement for disagreeable comments and name calling are all far out of line for a public official. Calling for a recess of a public meeting, so recording would stop so he could threaten someone is a direct anger management issue that can not be tolerated. He violates all that he claims to stand for with regards to respectful behavior. This is not the first time he has been disrespectful either, for he has done the same to other members of the public and to town officials. Repeating that you are a volunteer as if that is an excuse for inadequacies in performing the responsibilities of your position is not a good excuse. For the sake of the town and its integrity, he should step down.

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18 southsider November 14, 2019 at 9:07 AM

I’ve not read the AG’s letter but the reports of it I’ve seen seem to indicate it’s criticism is directed more towards town counsel first and the BOS oversight of counsel second.
Both need to do better and the suggestion of a term limit for certain full time town administrators was an interesting one.
My impression of Dan K is of a patriot who gives much of his time to service of both the country and the town. I believe he has a very good job with a global tech company and to my knowledge has no vested interests with local businesses or developers and has never displayed any other hidden agendas. Could he be better? sure… as could we all.
All BOS meeting begin with “approval of minutes’ and as has been pointed out in other comments, it’s the full time town administrators who have responsibility to be sure that certain items ( e.g. a semi annual review of old executive session minutes ) are properly addressed and included on the agenda.
Tom and Mary, I suggest you attend a BOS meeting and raise your concerns about town counsel or, as has also been suggested, either run for Dan’s position on BOS or find a candidate more to your liking and devote your time and energy to advancing his/her candidacy.

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19 Tom November 14, 2019 at 11:37 AM

Southsider, you clearly have a different view of the world, with your head in the sand. Change has already happened and will continue to happen. The town has had enough. Read the newspaper:

Worcester Telegram
https://www.telegram.com/news/20191112/southboro-selectmen-found-in-violation-of-open-meeting-law

As for what constitutes “service,” if shutting off audio feed (caught on camera) to shockingly threaten and point at a grandmother for asking the Board about overspending, taxes, and violating state law (which was a fact and remains a fact) constitutes “service,” most will disagree that is a behavioral anger management issue and exceedingly poor leadership, not service.

Breaking state Open Meeting Law is not about just approving minutes. (Those minutes never would have been released, btw, if complaints were not submitted.) It is about transparency, clean, clear, open, good functioning local government. It’s all about what is in the minutes and public awareness of same.

The lack of accountability is disappointing reminder to support new better leaders and further change. Change is good.

Don’t worry about new candidates, again, the town has had enough. Where have you been? The town residents have put new BOS members in place and will continue to do so. Suggest you look around you, and read the paper.

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